Jan v Health Care Complaints Commission (No 2)

[2021] NSWSC 480

Supreme Court

New South Wales

Medium Neutral Citation:

Jan v Health Care Complaints Commission (No 2) [2021] NSWSC 480

Hearing dates:

On the papers

Decision date:

07 May 2021

Jurisdiction:

Common Law

Before:

Leeming JA

Decision:

1. Application to vary order 6 made on 8 April 2021 refused.

2. Mr Jan to pay the HCCC’s costs of the application to vary order 6.

Catchwords:

COSTS – appeal from NCAT – applicant successful on 1 out of 16 grounds – whether costs should follow the event – where ground on which applicant succeeded maintained throughout proceedings – where other grounds numerous and some were close to unarguable – no order as to costs

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW) rr 36.16, 42.1

Cases Cited:

Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343

Jan v Health Care Complaints Commission [2021] NSWSC 350

Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50

Wollongong City Council v Papadopoulos [2019] NSWCA 178

Category:

Costs

Parties:

Rey Jan (Plaintiff/Applicant)
Health Care Complaints Commission (Defendant/Respondent)

Representation:

Counsel:
A Hourigan (Plaintiff/Applicant)
A Britt (Defendant/Respondent)

Solicitors:
Matthew Curll, Hall & Willcox (Plaintiff/Applicant)
Larisa Michalko, Director of Proceedings and Director of Legal Services (Defendant/Respondent)

File Number(s):

2020/220265

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

Civil and Administrative Tribunal of New South Wales

Jurisdiction:

Occupational Division

Citation:

[2020] NSWCATOD 75

Date of Decision:

02 July 2020

Before:

A Britton; E Peel; K Campbell; S Lovorich

File Number(s):

2019/333341

Judgment

1. HIS HONOUR: On 8 April 2021, I allowed the appeal brought by Mr Rey Jan from the decision of NCAT dismissing his application for reinstatement as a dentist, and remitted the application to NCAT for determination in accordance with law: Jan v Health Care Complaints Commission [2021] NSWSC 350. Mr Jan had advanced 16 grounds, 8 purportedly as of right, and 8 by way of leave (the latter were in identical terms to the former). I dismissed grounds 1-7, granted leave to appeal on grounds 9-13 but dismissed those grounds, and refused leave to appeal on grounds 14-16. Mr Jan’s success was based on ground 8 and that ground alone.

2. Order 6 of the orders made on 8 April 2021 was:

“No order as to the costs of the proceedings in this Court, with the intention that each party bear his and its own costs”.

3. When dealing with costs in this Court, I said at [79]:

“My present albeit preliminary view is that there should be no order as to costs, with the intention that each bear his and its own costs. Most of the grounds failed, and that which succeeded was far from prominent in the plaintiff’s submissions. Had the appeal been confined to ground 8, it may well have come to be heard more quickly, and the HCCC might have focussed on the question of power in advance of the hearing. However, if either side seeks an order in his or its favour, application may be made within the time specified by Uniform Civil Procedure Rules 2005 (NSW) r 36.16.”

4. In accordance with what was contained in that paragraph, Mr Jan has applied for an order that the HCCC pay his costs in this Court. I have considered his submissions supplied by email on 21 April 2021, and those of the HCCC supplied on 30 April 2021. Mr Jan’s solicitor advised on 5 May 2021 that he did not wish to make any submissions in reply, and was content with the application being heard and determined on the papers.

The parties’ submissions

5. Mr Jan says that costs should follow the event. He also submits that the sentence in [79] that “Had the appeal been confined to ground 8, it may well have come to be heard more quickly, and the HCCC might have focussed on the question of power in advance of the hearing” overlooked the circumstance that the issues underlying ground 8 had been enlivened at all times throughout the hearing in NCAT and in the Supreme Court. That submission is developed by reference to the submissions and evidence in NCAT, including the examination of Mr Jan and Dr Kelsey, and to the specific references to this issue in the written and oral submissions in this Court. His submission concludes:

“To that end it is the Plaintiff’s respectful submission that the Defendant was on notice of the issue relating to the imposition of conditions being a factor for consideration by the Tribunal and that the Tribunal Decision was flawed in circumstances where no consideration or reasoning was provided in response to the live issue.”

6. The HCCC opposes the order sought by Mr Jan. It says that an order that there be no order as to costs was appropriate given the failure of most of the grounds, and the fact that Mr Jan’s success was on a slightly different basis than as strictly set out in the summons and submissions. It also says that all that matters is what was advanced in this Court.

Consideration

7. I have concluded that Mr Jan’s application to vary order 6 so as to obtain a costs order in his favour should be dismissed. My reasons may be stated shortly.

8. First, the costs in question are only the costs of the proceedings in the Supreme Court. The costs of the proceedings in NCAT to date are in the discretion of NCAT as constituted to hear the remitted proceeding.

9. Secondly, in this Court, Mr Jan obtained favourable orders setting aside NCAT’s determination. The starting point is UCPR r 42.1, that costs follow the event.

10. Thirdly, I accept Mr Jan’s submission that substantially the point on which he succeeded was at all times being agitated in his appeal and before NCAT. A well recognised basis for departing from the usual order for costs is where an appellant succeeds on a point not hitherto raised. That is not this case.

11. However, the fact that Mr Jan succeeded on a point which he had consistently agitated does not entail that the usual rule in UCPR Pt 42 applies. A number of considerations apply tending against an order that the HCCC pay Mr Jan’s costs.

12. Mr Jan sought more favourable orders than those he obtained. His summons sought an order that this Court itself to order his reinstatement. That was abandoned during the hearing, as described in [4] of the earlier judgment.

13. Mr Jan failed on the large majority of his grounds of appeal. Some were hopeless because they purported to raise grounds which could be raised as of right, although they plainly involved questions of fact. Even when suggestions to that effect were made, by Cavanagh J, at a directions hearing, this led only to a mechanical doubling of the grounds of appeal, by adding grounds 9-16 in identical terms as already formulated but by way of grounds which could be pursued with leave. And even putting to one side the distinction between an appeal as of right on a question of law, and with leave on questions of fact, some of the grounds were either hopeless or if they were not, “only just [fell] on the side of what is reasonably arguable within the broader scope of the appeal which is permissible by way of leave”: at [56] of the earlier judgment.

14. It is clear that the large majority of time spent arguing the appeal, and the large majority of the parties’ written submissions served in advance of the appeal, was spent on points where Mr Jan failed. I would infer that the majority of Mr Jan’s costs was spent on points on which he failed, rather than on points on which he succeeded. I would likewise infer that the majority of the HCCC’s costs were spent on points on which it succeeded.

15. There is regularly a question which arises where a litigant enjoys some partial success, but has also been unsuccessful on some of the issues litigated. There is a well recognised discretion in those circumstances to depart from the usual rule. In Bullabidgee Pty Ltd v McCleary (No 2) [2011] NSWCA 343 it was said at [10] that the costs ordered “should be a just and fair reflection of the cases run, won and lost, given the range of issues litigated, the manner of running the trial and the basis of success.” Cases where an appellant who has obtained orders in his or her favour, but where the appellant’s failure on other grounds has led to there being no order as to costs include Ross v Lane Cove Council (2014) 86 NSWLR 34; [2014] NSWCA 50 at [83] and Wollongong City Council v Papadopoulos [2019] NSWCA 178 at [83].

16. Having regard to the way in which Mr Jan sought orders and raised grounds on which he did not succeed, in addition to the single ground on which his success was based, I think that a just and fair order as to costs is that there be no order as to costs (which is to say that the parties should bear their own costs) of the proceedings in this Court.

17. Mr Jan’s application for costs stands in a separate position. He has been wholly unsuccessful. He should pay the HCCC’s costs of responding to his application to vary order 6.

18. Accordingly, I make the following orders:

1. Application to vary order 6 made on 8 April 2021 refused.

2. Mr Jan to pay the HCCC’s costs of the application to vary order 6.

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Decision last updated: 07 May 2021